REVISED, August 4, 1997
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-10990
ROBERT P. BURCH,
Plaintiff-Appellee,
Cross-Appellant,
versus
COCA-COLA, CO.,
Defendant-Appellant,
Cross-Appellee,
________________________________________________
Appeals from the United States District Court for the
Northern District of Texas
________________________________________________
July 30, 1997
Before GARWOOD, WIENER and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellee, cross-appellant Robert P. Burch (Burch)
brought this suit under the Americans with Disabilities Act (ADA)
asserting that his termination by his employer defendant-appellant,
cross-appellee Coca-Cola Co. was in violation of the ADA. Burch
also advanced Texas law claims of intentional infliction of
emotional distress and defamation. The trial court granted Coca-
Cola’s motion for summary judgment on the state law claims and
granted judgment as a matter of law for Coca-Cola on the ADA
intentional discrimination claim. The jury returned a verdict in
favor of Burch on the ADA reasonable accommodation claim. Coca-
Cola appeals the denial of its motion for judgment as a matter of
law on the reasonable accommodation claim. Burch cross appeals the
judgment as a matter of law on his intentional discrimination claim
and the summary judgment on his defamation claim. We hold that
Coca-Cola was entitled to judgment as a matter of law on both the
intentional discrimination and the reasonable accommodation ADA
claims, and that summary judgment was properly awarded to it on the
defamation claim.
Facts and Proceedings Below
Burch, a former management-level employee of Coca-Cola,
brought this suit against his former employer under the ADA.
Burch, a recovering alcoholic, alleged that Coca-Cola terminated
him because of his alcoholism and, alternatively, failed to
accommodate his disability by terminating him instead of permitting
him to return to work after he successfully completed a
rehabilitation program.
Coca-Cola recruited Burch in mid-1989. At that time, Burch
was a twenty-four-year veteran of the General Electric Company
having achieved some success in various management positions.
Burch commenced his employment with Coca-Cola in July 1989 as an
area service manager for the company’s Fountain Division. Coca-
Cola assigns service responsibility by geographic area, dividing
the country into several regions. As the area service manager for
the southwest region, Burch was responsible for managing Coca-
Cola’s service network for a region that included all of Texas and
stretched from North Dakota to Colorado and from Mississippi to
2
parts of Arizona. He directly supervised approximately twenty
Coca-Cola employees.
Burch’s tenure with Coca-Cola was largely without incident and
he was evaluated consistently as a manager who met requirements in
a satisfactory manner. In 1991, Coca-Cola recognized Burch as the
Area Service Manager of the Year. In July 1993, Burch received his
highest overall evaluation score—an “M.E.”——which signified that
Burch “met or exceeded” goals. Burch’s evaluations, however,
reflect that “working relationships” was a “developmental area” for
him. Burch was never formally reprimanded for improper behavior
prior to his termination in November 1993.
In May 1992, Burch sought, and began receiving, counseling
pursuant to Coca-Cola’s Employee Assistance Program (EAP).
Counseling pursuant to Coca-Cola’s EAP is confidential; counselors
are not permitted to notify Coca-Cola of the matters discussed or
the name of the particular employee seeking counseling. Clinical
social worker Cynthia Maddox, an EAP-provided counselor, saw Burch
from May 29, 1992, until August 31, 1992, and again on February 3,
1993. Burch and Maddox primarily discussed relationship problems
Burch was having with his then-current girlfriend. Burch, who has
been married four times, was troubled with his inability to have
lasting personal relationships. Although Maddox did not treat
Burch for alcohol abuse, she noted a possible alcohol problem.
On February 3, 1993, Burch requested a psychiatric referral
from Maddox. Maddox referred Burch to Dr. Joel Holiner, a
psychiatrist in private practice, after concluding that Burch was
3
exhibiting “obsessive, compulsive, and paranoid” behavior.
Burch saw Dr. Holiner in February 1993. Dr. Holiner diagnosed
Burch as suffering from “adjustment disorder with depressed mood”
and “probable alcohol abuse.” Dr. Holiner in turn referred Burch
to Dr. Marcelo Matamoros, a psychotherapist in private practice,
for additional therapy. Dr. Matamoros began treating Burch several
days after his referral, also in February 1993.
Burch testified that throughout this time he was drinking
heavily during his off hours, routinely drinking eight or ten beers
in the evening. Burch also testified that, although he never drank
during working hours, he experienced hangover-like symptoms in the
mornings and attempted to isolate himself from interaction with
people. Burch would close his office door and complete paperwork
in the morning to avoid contact with other Coca-Cola employees,
explaining that he “wasn’t a morning person.”
Although Burch had been a regular drinker since age fourteen,
he testified at trial that he believed his tenure at Coca-Cola
exacerbated his problems with alcohol. Burch testified that
alcohol was served regularly at Coca-Cola functions and that he
drank regularly with both his peers and supervisors during business
trips. The Coca-Cola “culture,” as characterized by Burch,
amounted to a fraternity of drinkers and contributed to his
alcoholism. Burch testified that at his first Coca-Cola meeting in
1989, his supervisor, Bill Speer, called for an afternoon “beer
break” instead of a coffee break. Similarly, Burch claimed that
company-sponsored cocktail hours were common and that managers
4
typically frequented bars and cocktail lounges after area service
managers meetings.
Bill Speer was replaced as Burch’s supervisor by Jose Smith,
a man who Burch claimed had an exceedingly aggressive management
style. Burch experienced no problems with his professional working
relationship with Smith and no testimony was presented concerning
any contact between Burch and Smith outside of their respective
professional responsibilities. Smith’s evaluations of Burch were
unremarkable; Burch was rated as a competent area service manager
with no noted problems of any significance.
Burch’s third supervisor, Perry Cutshall, replaced Smith after
approximately two years in 1991. Burch testified that he “tried
real hard to build a relationship” with Cutshall, regularly
drinking with him in Atlanta after monthly area service managers
meetings. Burch further testified that Cutshall had been
intoxicated on at least one occasion and that drinking after the
meetings was “part of the protocol.” Burch contended at trial that
he informed Cutshall in 1992 that he had sought EAP counseling, but
did not specify that he was concerned about an alcohol problem.
Burch also testified that he drank extensively with his fellow
area service managers George Hawkins and Jerry Allen, although he
contended that he curtailed his social drinking after he entered
counseling with Maddox in 1992. Burch testified that he believed
that Hawkins and Allen——whom he considered to be close social
friends of Cutshall——ostracized him in 1992 when he stopped
drinking with them after meetings and on business trips. Burch
5
admitted, however, that Cutshall recommended him for two positions
that would have been considered promotions after the perceived
ostracism began in May 1992.
The only testimony concerning inappropriate conduct on the job
by Burch prior to September 1993 was an incident involving a Coca-
Cola customer service representative, Lajuanna Ajayi, in March
1993. The incident involved a McDonald’s restaurant that had been
without fountain service for an extended period. After
unsuccessful attempts to reach an intermediate service manager,
Ajayi contacted Burch directly by pager. Although the precise
facts were contested at trial, it was established that Burch, who
was in Toronto, was short with Ajayi when he answered the page.
Ajayi complained to her supervisors, who in turn reported the
incident to Cutshall. Cutshall spoke with Burch about the incident
in Atlanta shortly after it occurred. Burch apologized to Ajayi
but no formal reprimand was made by Cutshall.
The events leading up to Burch’s termination began at a
September 22, 1993, area service mangers meeting in Atlanta. The
meeting, at which approximately thirty-five Coca-Cola managers from
around the country were in attendance, was held in a warehouse in
Dunwoody, Georgia, a suburb north of Atlanta. The meeting lasted
all day, with presentations from Coca-Cola managers concerning
various procedures and developments affecting the fountain
division. Burch testified that, during the meeting, Allen and
Hawkins made repeated derogatory comments about him. Burch’s
version of the events of the meeting were largely corroborated by
6
the participants. There was testimony to the effect that joking
and bantering between the managers was routine, although Burch
testified that the disruptions at the meeting were exceptional. At
the time of the September 1993 meeting, Allen was assigned to a
position at the customer communications center that was roughly
equivalent to Burch’s status as an area service manager. Hawkins
was Allen’s superior.
After the meeting concluded that afternoon, the participants
went to the Dunwoody Holiday Inn for a reception honoring Max
Trowbridge, who was the outgoing area service manager for New York
and was transferring to Coca-Cola’s Integrated Operating Systems
(IOS) division. According to Burch, Trowbridge’s transfer was not
an advancement, but rather a result of his poor performance as an
area service manager. The evening event commenced at six o’clock
and began with a cocktail hour in a reception room at the hotel.
Burch testified that he had had several drinks, but did not become
intoxicated. Dinner was also served in the reception room.
Burch testified that Trowbridge, while addressing the group,
said that Burch was “a good candidate for” IOS. Burch took offense
at this comment, which he considered to be an attack on his
competence.1 Burch further testified that Hawkins rejoined with
“Perry would enjoy that,” referring to Burch’s supervisor Cutshall.
The room laughed at the remarks and Burch turned to face the table
1
Brady Lum, a manager affiliated with IOS, testified that he
interpreted the remarks as a compliment.
7
at which Allen, Hawkins, and Cynthia Bilbo2 were sitting. Because
Hawkins’s back was toward Burch, Burch pointed at Allen and mouthed
“fuck you” twice and “get off my ass.” Burch, as he admitted, at
the same time also motioned with his head for Allen to meet him
outside the room. Burch testified that, throughout the exchange,
Allen kept laughing. Burch——who is some 6'5" tall, weighed about
223 pounds, and biked some 100 to 200 miles a week——admitted that
he had then been “red in the face” and “very angry,” but stated
that he never left his chair and never intended to engage in any
physically violent behavior. After the episode, a manager seated
at Burch’s table, Mike Memoli, told Burch to calm down. Burch
remained seated at his table for the remainder of the dinner
without incident.
Burch testified that Hawkins apologized to him after dinner
for the remarks he had made throughout the day at the meeting and
at the dinner. Cutshall was not aware that the episode had
occurred until after the dinner was over.3 Cutshall and Burch did
not speak about the incident at the following day’s meeting. Burch
2
There was testimony to the effect that Bilbo was among the
group during the afternoon meeting that had made antagonistic
comments toward Burch. In September 1993, she was assigned to the
customer communications center and reported directly to Allen. The
jury heard testimony that both at the time of the incident and
during the trial Bilbo had a romantic relationship with Cutshall.
3
Bilbo testified that she informed Cutshall as the dinner was
breaking up. Cutshall testified that he spoke with Allen and
Hawkins to get their versions later that evening. Cutshall spoke
with Lum about the incident the next day, September 23, 1993. The
evening of September 22, 1993, Cutshall also learned of an earlier
incident between Burch and another Coca-Cola manager, James
Britton.
8
returned to Dallas the evening of September 23, 1993.
Upon his return to Dallas, Burch attempted to contact Dr.
Matamoros, who was out of town. Burch spoke with the counselor on
duty who recommended consultation with a psychiatrist because of
the severity of Burch’s depression and described alcohol abuse.
The following afternoon, September 24, 1993, Burch learned
from John Barker, an area service manager from St. Louis who had
also attended the dinner in Atlanta, that the Coca-Cola human
resources department was investigating Burch’s conduct at the
dinner. Burch testified that he attempted unsuccessfully to
contact Cutshall on Friday to discuss the incident.
On Saturday, September 25, 1993, Burch spoke with Cutshall,
who informed him of the pending human resources investigation.
Cutshall directed Burch to discuss his version of the incident with
Frank Tola, who was to lead the investigation. Burch told Cutshall
for the first time that he was experiencing problems with alcohol
abuse and that he intended to undergo treatment at Charter Hospital
in Dallas. Burch testified that he spoke with several managers on
Saturday who had attended the Atlanta meeting and dinner concerning
the incident and its severity.
On Sunday, September 26, 1993, Burch was admitted voluntarily
to Charter Hospital. Dr. Edgar Nace was Burch’s treating
physician, who admitted Burch on an in-patient basis. Burch
remained at Charter Hospital until October 6, 1993, at which point
he became a day patient. Burch then contacted Cutshall and
requested to return to work on a part-time basis. Cutshall
9
informed Burch that he could not return as he was on suspension
pending completion of the human resources investigation. Burch
remained on full salary throughout his treatment (which was paid
for by Coca-Cola’s benefit plan) and until his termination.
On October 27, 1993, Burch sent a letter to Tola requesting to
“return to work immediately.” Letters from Dr. Nace and Dr.
Matamoros were also then forwarded to Tola attesting to Burch’s
readiness to return to work at Coca-Cola. In a memorandum dated
October 27, 1993, Tola recommended that Burch be discharged for his
behavior at the dinner. Tola’s recommendation was supported by six
Coca-Cola managers.
Tola asked Burch to return to his office in Dallas on November
4, 1993. Upon his arrival he was met by Tola and Cutshall, who
informed Burch that he was terminated from his employment with
Coca-Cola for “performance issues.” Burch was asked to return all
company property and was escorted off the premises by an off-duty
police officer.
The following Monday, Burch went to the offices of Drake, Beam
& Morin, a placement firm used by Coca-Cola. During his visit,
Burch testified that he was met by an employee who wanted
reassurances that Burch would not behave improperly while in the
Drake, Beam & Morin offices. Burch further testified that the
questions were a result of a facsimile received from Coca-Cola
stating that Burch had been terminated for “violent and threatening
behavior.” Burch left the offices.
Since his termination from Coca-Cola, Burch has held two
10
subsequent managerial jobs. The first, a $115,000 a year
management position with Bell Packaging in Michigan, lasted from
April to September 1994, when he was terminated for a conflicting
management style. The second, a $60,000 a year management position
with Montgomery Ward in Dallas, ended after several months when
Burch resigned in lieu of termination.
Burch filed suit in state court in Dallas County, Texas,
alleging that he had been terminated in violation of the ADA and
asserting state law claims of defamation and intentional infliction
of emotional distress. Coca-Cola removed the action to the United
States District Court for the Northern District of Texas (Dallas
Division). Pursuant to 28 U.S.C. § 636(c), the parties consented
to trial before a magistrate judge.
Coca-Cola filed a motion for summary judgment on all claims.
After Burch’s response was filed, the magistrate judge issued a
memorandum order granting summary judgment in favor of Coca-Cola on
the Texas law defamation and intentional infliction of emotional
distress claims and denying summary judgment on Burch’s ADA claims.
The case was tried before a jury in Dallas. At the close of
Burch’s evidence, Coca-Cola made a motion for judgment as a matter
of law pursuant to Rule 50. The magistrate judge granted the
motion on the ADA intentional discrimination claim but denied the
motion on the ADA reasonable accommodation claim. Coca-Cola’s
renewed motion (on the reasonable accommodation claim) at the close
of all the evidence was denied.
The jury returned a verdict in favor of Burch, finding that
11
Coca-Cola terminated Burch in violation of the ADA. The jury
awarded Burch $109,000 in backpay, $700,000 in front pay, $300,000
in compensatory damages, and $6,000,000 in punitive damages. Coca-
Cola moved for judgment as a mater of law or, in the alternative,
for a new trial.
The magistrate judge denied Coca-Cola’s motion and entered
judgment for Burch. The magistrate judge reduced the front pay
award to $294,777 (representing the discounted value of five years
front pay), reduced the punitive damage award to zero, and awarded
Burch attorneys’ fees of $208,072. Coca-Cola renewed its motion
for judgment as a matter of law or a new trial. The magistrate
judge denied Coca-Cola’s motion.
Coca-Cola has appealed. It asserts that the magistrate judge
erred by denying its motion for judgment as a matter of law on the
ADA reasonable accommodation claim, by denying its motion for a new
trial, and by awarding an excessive amount of compensatory damages.
Burch has cross appealed. He asserts that the magistrate judge
erred by granting Coca-Cola summary judgment on his Texas law
defamation claim and by granting Coca-Cola’s motion for judgment as
a matter of law on his ADA intentional discrimination claim.
Discussion
Both parties appeal from the magistrate judge’s rulings on
Coca-Cola’s Rule 50 motions for judgment as a matter of law. This
Court reviews de novo rulings on Rule 50(a) and (b) motions, using
the same standards as those to be employed by the trial court. RTC
v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993).
12
After a party has been fully heard on an issue, a trial court
may grant an opposing party’s motion for judgment as a matter of
law if “there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue.” Fed. R.
Civ. P. 50(a)(1). In such circumstances, we view the entire trial
record in the light most favorable to the non-movant, drawing
reasonable factual inferences in its favor. Conkling v. Turner, 18
F.3d 1285, 1300 (5th Cir. 1994). “‘The ‘decision to grant a
directed verdict . . . is not a matter of discretion, but a
conclusion of law based upon a finding that there is insufficient
evidence to create a fact question for the jury.’” Id. at 1300-01
(quoting In re Letterman Bros. Energy Sec. Litig., 799 F.2d 967,
972 (5th Cir. 1986), cert. denied, 107 S.Ct. 1373 (1987)). “If the
facts and inferences point so strongly and overwhelmingly in favor
of the moving party . . . that reasonable jurors could not have
arrived at a contrary verdict, then we will conclude that the
motion should have been granted.” Cramer, 6 F.3d at 1109 (5th Cir.
1992) (citing Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)
(en banc)).
I. Reasonable Accommodation
“‘The ADA is a federal antidiscrimination statute designed to
remove barriers which prevent qualified individuals with
disabilities from enjoying the same employment opportunities that
are available to persons without disabilities.’” Taylor v.
Principal Fin. Group, Inc., 93 F.3d 155, 161 (5th Cir.) (quoting 29
13
C.F.R. § 1630, App. (1995)), cert. denied, 117 S.Ct. 586 (1996).
In order to achieve this goal, the ADA prohibits——as a form of
discrimination——an employer’s failure to make “reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless [an employer] can demonstrate that
the accommodation would impose an undue hardship.” 42 U.S.C. §
12112(b)(5)(A) (1995).
The ADA, its implementing regulations, and the EEOC’s
interpretive guidance make clear that an employer’s obligation to
provide a “reasonable accommodation,” when triggered, contemplates
changes to an employer’s procedures, facilities, or performance
requirements that will permit a qualified individual with a
disability to perform the essential functions of his or her job.
In all cases a reasonable accommodation will involve a change in
the status quo, for it is the status quo that presents the very
obstacle that the ADA’s reasonable accommodation provision attempts
to address. The ADA provides:
“The term ‘reasonable accommodation’ may include--
(A) making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities; and
(B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition
or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for
individuals with disabilities.” 42 U.S.C. § 12111(9).
In addition to repeating the examples of reasonable accommodations
set forth in the statute, the regulations define the term as
14
“[m]odifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position.”
29 C.F.R. § 1630.2(o)(1)(ii) (1996). The EEOC’s interpretive
guidance also emphasizes the protean nature of the employer’s
obligation. See 29 C.F.R. § 1630, App. (1996) (“In general, an
accommodation is any change in the work environment or in the way
things are customarily done that enables an individual with a
disability to enjoy equal employment opportunities.”).
We conclude that this case was improperly tried on a
reasonable accommodation theory. First, Burch failed to establish
that his alcoholism interfered in any way with his ability to
perform the essential functions of an area service manager for
Coca-Cola without reasonable accommodation or, for that matter,
that his alcoholism ever substantially impaired any major life
activity. Second, Burch failed to establish that he ever requested
any modification or adjustment to his job as an area service
manager with Coca-Cola. A wrongful termination claim under the ADA
is not properly analyzed under a reasonable accommodation theory
unless an employer is shown to have terminated a qualified
individual with a disability in order to avoid accommodating that
employee’s impairments at the workplace. Accordingly, an employee
who requests only the opportunity to return to an unmodified,
previously-held position fails to state a cognizable claim under 42
U.S.C. § 12112(b)(5).
15
A. Burch’s Limitation
“[T]he ADA requires employers to reasonably accommodate
limitations, not disabilities.” Taylor, 93 F.3d at 164. This is
a critical distinction, because the existence vel non of a
disability or impairment is material to a reasonable accommodation
claim only insofar as it limits an employee’s ability to perform
his or her job.4 Id. (“Thus, while a given disability may limit
one employee (and therefore necessitate a reasonable
accommodation), it may not limit another.”); see also Beck v.
University of Wisc. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.
1996) (“It is plain enough what ‘accommodation’ means. The
employer must be willing to consider making changes in its ordinary
work rules, facilities, terms, and conditions in order to enable a
disabled individual to work.”) (quotation omitted). Accordingly,
an impairment must be substantially limiting at the time of the
requested accommodation. See Pritchard v. The Southern Co. Servs.,
92 F.3d 1130, 1133 (11th Cir. 1996); Muller v. Automobile Club of
S. Ca., 897 F.Supp. 1289, 1295-96 (S.D. Ca. 1995).
The ADA defines “qualified individual with a disability” as
“an individual with a disability who, with or without reasonable
4
Burch argues that “to be protected under the ADA, an
individual need only show that a major life activity is
substantially limited; there is no requirement that the individual
also show that he is limited in the activity of working as well.”
This is true insofar as Burch may assert a claim for intentional
discrimination under the ADA. To assert a discrimination claim
under the reasonable accommodation provision, however, Burch must
demonstrate that a substantially limiting impairment somehow
affected his ability to perform his job. Without such a showing,
there would be nothing for an employer to accommodate.
16
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42
U.S.C. § 12111(8). The ADA further defines an actionable
disability, in relevant part, as “a physical or mental impairment
that substantially limits one or more of the major life activities
of such individual.” Id. § 12102(2)(A). “Physical or mental
impairment,”5 “substantially limits,”6 and “major life activities”7
are all defined in the applicable regulations.
Coca-Cola contends that Burch failed to establish that he was
a qualified individual with a disability as required by the ADA.
5
“(h) Physical or mental impairment means:
(1) Any physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting one
or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive,
digestive, genito-urinary, hemic and lymphatic, skin, and
endocrine; or
(2) Any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.” 29
C.F.R. §1630.2(h) (1996).
6
“(j) Substantially limits--(1) The term substantially
limits means:
(i) Unable to perform a major life activity that the
average person in the general population can perform; or
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can perform
a particular major life activity as compared to the
condition, manner, or duration under which the average
person in the general population can perform that same
major life activity.” Id. § 1630.2(j).
7
“(i) Major Life Activities means functions such as caring
for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.”
Id. § 1630.2(i).
17
In response, Burch makes a number of arguments in support of his
assertion that his alcoholism made him a “qualified individual with
a disability.” The first, briefly stated, is that Dr. Nace,
Burch’s expert, said it did. The relevant testimony of Dr. Nace is
as follows:
“Q. I want to read to you the definition of disability
under the Americans with Disabilities Act. It says, ‘The
term disability means with respect to an individual a
physical or mental impairment that substantially limits
one or more of the major life activities of such
individual.’ Using that definition is an alcoholic
disabled?
A. Yes.
Q. In your opinion does Bob fit the definition of
disabled under he [sic] Americans with Disabilities Act?
A. Yes, I think so.”
Dr. Nace’s testimony, even as Burch’s treating physician, sheds no
light on the individualized inquiry required by the ADA. Dr. Nace
testified only in general terms about alcoholics as a class. The
only testimony given by Dr. Nace concerning Burch individually
concerned Burch’s ability to function without limitation.8 As the
EEOC’s interpretive guidance makes plain, the ADA does not attempt
to set forth a laundry list of impairments that are disabilities.
See 29 C.F.R. § 1630, App. (1996) (“The determination of whether an
individual has a disability is not necessarily based on the name or
diagnosis of the impairment the person has, but rather on the
effect of that impairment on the life of the individual. Some
8
Dr. Nace agreed that by mid-October 1993 Burch would have
been “a better employee than he was before,” and “a more productive
and improved employee.” On cross-examination, Dr. Nace
acknowledged that Burch’s status as a recovering alcoholic did not
affect his ability to walk, sit, hear, work, or participate in any
“usual activities.”
18
impairments may be disabling for particular individuals but not for
others . . . .”). Unlike HIV infection, the EEOC has not attempted
to classify alcoholism as a per se disability, and we decline to
adopt such a questionable position. See id.; Foreman v. The
Babcock & Wilcox Co., No. 96-60510 (5th Cir. July 10,
1997)(employee’s heart condition with surgically implanted
pacemaker did not substantially limit the major life activity of
working); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37
(5th Cir. 1996) (asbestosis sufferer who experienced episodic
shortness of breath due to a reduced lung capacity was not
substantially limited in the major life activity of breathing);
Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir. 1996) (“‘[h]igh
blood pressure, alone, without any evidence that it substantially
affects one or more major life activities, is insufficient to bring
an employee within the protection of the ADA’”); Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 726 & n.11 (5th Cir. 1995) (evidence of
a partially crippled arm insufficient to meet the standard of
substantially limiting a major life activity); see also McKay v.
Toyota Motor Mfrg., USA, Inc., 110 F.3d 369, 372 (6th Cir.
1997)(diagnosed “carpal tunnel syndrome” did not substantially
limit the major life activity of working); Soileau v. Guilford of
Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997) (employee’s dysthymia,
a chronic depressive disorder, did not substantially limit the
assumed major life activity of “get[ting] along with others”).
Second, Burch makes reference to his testimony that his
ability to walk, talk, think, and sleep were affected when he drank
19
too much. Burch also testified that he had hangovers in the
morning that affected his memory. That Burch’s inebriation was
temporarily incapacitating is not determinative. Burch produced no
evidence that the effects of his alcoholism-induced inebriation
were qualitatively different than those achieved by an
overindulging social drinker: in both situations, the natural
result of overindulgence is the temporary impairment of senses,
dulled reactions, and the prospect of a restless sleep followed by
an unpleasant morning. Although Burch’s alcoholism assuredly
affected how he lived and worked, “far more is required to trigger
coverage under § 12102(2)(A).” Ellison v. Software Spectrum, 85
F.3d 187, 191 (5th Cir. 1996). Burch’s testimony that his
inebriation was frequent does not make it a permanent impairment.
Permanency, not frequency, is the touchstone of a substantially
limiting impairment. Although Burch’s alcoholism may have been
permanent, he offered no evidence that he suffered from any
substantially limiting impairment of any significant duration.9 We
have previously rejected attempts to transform temporary
afflictions into qualifying disabilities. See Rogers v.
9
This is not to say that an alcoholic can never demonstrate a
substantially limiting impairment. But where, as here, an
alcoholic’s only proffered impairments are the primary result of
temporary inebriation, such proof is insufficient. Burch offered
no testimony that his alcoholism-induced inebriation permanently
altered his gait, his ability to speak properly, his memory when
sober, or produced long-term insomnia. In fact, when Burch began
treatment for his alcoholism in late September 1993, he reported to
Charter Hospital that he had been bicycling recreationally between
100 and 200 miles a week. Burch concedes that, prior to his paid
leave to undergo treatment, his work was unaffected by his
alcoholism. Burch testified that he never drank during working
hours.
20
International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.
1996); Rakestraw v. Carpenter Co., 898 F. Supp. 386, 390 (N.D.
Miss. 1995); see also Soileau v. Guilford of Maine, Inc., 105 F.3d
12, 16 (1st Cir. 1997); Sanders v. Arneson Products, Inc., 91 F.3d
1351, 1354 (9th Cir. 1996), cert. denied, 117 S.Ct. 1247 (1997);
29 C.F.R. § 1630.2(j), App. (1996) (“[T]emporary, non-chronic
impairments of short duration, with little or no long term or
permanent impact, are usually not disabilities.”).
Third, Burch argues that “[t]he fact that Burch ultimately had
to be hospitalized establishes that his alcoholism substantially
limited his major life activities.” For this proposition, Burch
relies upon School Bd. of Nassau County v. Arline, 107 S.Ct. 1123,
1127 (1987), a Rehabilitation Act case involving a claimant
suffering with an acute form of tuberculosis so severe that it
required hospitalization. In Arline, the Supreme Court, describing
the effect the plaintiff’s tuberculosis had on her respiratory
system, observed, “[t]his impairment was serious enough to require
hospitalization, a fact more than sufficient to establish that one
or more of her major life activities were substantially limited by
her impairment.” Id. (noting that her hospitalization established
a record of impairment under the Rehabilitation Act).
The quoted language from Arline cannot be construed to obviate
the requirement, explicit in the ADA and its implementing
regulations, that purported conditions be examined to ascertain
whether a specific condition substantially limited a major life
activity. The ADA requires an individualized inquiry beyond the
21
mere existence of a hospital stay. Although the Court in Arline
noted that the plaintiff’s hospitalization established a record of
impairment, the defendant had conceded that her acute tuberculosis
had been substantially limiting. Indeed, the defendant’s position
in Arline was not that the plaintiff was not “handicapped,” but
rather that her contagious disease——tuberculosis——was a threat to
the health of others (and therefore precluded liability for
termination on that basis). To accept Burch’s reading would work
a presumption that any condition requiring temporary
hospitalization is disabling——a presumption that runs counter to
the very goal of the ADA. See Ellison, 85 F.3d at 190-91
(plaintiff who worked a modified schedule during radiation
treatment for breast cancer had failed to establish a substantially
limiting impairment under the ADA); Demming v. Housing and Redev.
Auth., 66 F.3d 950, 955 (8th Cir. 1995) (rejecting plaintiff’s
position that, under Arline, proof of hospitalization for thyroid
cancer established a disability under the Rehabilitation Act);
Sanders, 91 F.3d at 1354 (psychological impairment requiring
treatment and precluding work for three and a half months “not of
sufficient duration to fall within the protections of the ADA as a
disability”); Taylor v. United States Postal Service, 946 F.2d
1214, 1217 (6th Cir. 1991) (Arline should not be read “as
establishing the nonsensical proposition that any hospital stay is
sufficient to evidence a ‘record of impairment’” under the
Rehabilitation Act); Coghlin v. H.J. Heinz Co., 851 F. Supp. 808,
813 (N.D. Tex. 1994) (Arline’s analysis did not address the
22
“substantially-limits” portion of disability under the ADA).
Fourth, Burch contends that his impairment must be viewed
without regard to “mitigating measures.” The EEOC’s interpretive
guidance does state that “[t]he existence of an impairment is to be
determined without regard to mitigating measures such as medicines,
or assistive or prosthetic devices.” 29 C.F.R. § 1630.2(h), App.
(1996). Even assuming, however, that Burch’s treatment for
alcoholism was the equivalent to a diabetic’s insulin dose——a
proposition neither supported by the record nor judicially
noticeable——we note that Burch failed to establish that his
untreated alcoholism substantially limited any major life activity
or that he required any continuing treatment whatsoever after he
completed the rehabilitation program at Charter. Cf. Harris v. H&W
Contracting Co., 102 F.3d 516, 522-23 (11th Cir. 1996) (finding
material issue of fact existed as to whether employee with Grave’s
disease was substantially limited where there was evidence that
prior overdosage of thyroid medication produced “panic attack” and
that withdrawal of medication would cause coma and death).
Burch admonishes the Court that if his successful completion
of rehabilitation precludes him from recovery under the ADA we will
produce “the anomalous result of affording protection for
alcoholics who continue to drink, but not for those who are
recovering.” Not so. It is not difficult to imagine the myriad
types of health problems, both physical and mental, that continue
to plague even recovering alcoholics. Under different
circumstances——and additional evidentiary support——an alcoholic may
23
establish the need for reasonable accommodation of an alcoholism-
induced impairment. Burch simply has not done so; there is
insufficient evidence in the record to support a jury finding that
Burch ever suffered a substantial impairment of a major life
activity, much less that he did so on or after October 27, 1993.
Although Burch’s alcoholism would not necessarily preclude him from
asserting reasonable accommodation rights under the ADA, it plainly
does not excuse his failure to meet the statutory prerequisites.10
B. Requested Accommodation
In addition to Burch’s failure to establish that he was a
qualified individual with a disability, his failure to request a
cognizable, reasonable accommodation also demonstrates the
magistrate judge’s error in submitting this case to the jury on a
reasonable accommodation theory.
As set forth above, the ADA contemplates modifications or
adjustments to an employer’s procedures, facilities, or, perhaps,
10
Burch discerns in the ADA’s legislative history a
congressional intent to assist recovering alcoholics. Burch draws
this conclusion principally from Congress’s decision not to exempt
alcoholics in 42 U.S.C. § 12114 as it had current users of illegal
drugs. The decision not to exclude alcoholics peremptorily,
however, is far from a decision to confer disabled status without
the inquiry prescribed by the ADA. Congress has been especially
reluctant to confer privileges on the basis of alcoholic status
alone. See, e.g., Contract with America Advancement Act of 1996,
Pub. L. No. 104-121, § 105, 110 Stat. 847, 852-55 (“An individual
shall not be considered to be disabled for purposes of this title
if alcoholism or drug addiction would (but for this subparagraph)
be a contributing factor material to the Commissioner’s
determination that the individual is disabled.”) (denying Social
Security disability benefits to alcoholics). Wherever Congress’s
sympathies lie, we find no evidence in the legislative history or
elsewhere of a congressionally conferred exemption for alcoholics
from the rigors of the scheme set forth in the ADA.
24
performance requirements to enable a disabled employee to
accomplish his or her job. Burch never requested Coca-Cola to
change any aspect of his job. To the contrary, Burch has contended
consistently that he required no job concessions——that he was in
every way fit to return to precisely the same position, the same
responsibilities, the same schedule, the same supervisor, and even
the same office that he had prior to his treatment at Charter.
Burch contends that Coca-Cola refused to provide him a
reasonable accommodation on two separate occasions. First, he
argues, Coca-Cola “refused Burch’s request that he return to work
part-time while he was still in treatment.” We may dispose of this
first contention of Burch’s with dispatch. Although the jury was
instructed as to an employer’s reasonable accommodation obligations
under the ADA, it was asked only: “Was Plaintiff Robert Burch
terminated by Defendant The Coca-Cola Company in violation of the
ADA?” The reasonableness of Coca-Cola’s accommodation to Burch on
October 6, 1993,——to retain him on full salary while he completed
his treatment at Charter rather than take him back on a part-time
basis——was not an issue that was before the jury.11 There is no
11
Even had Burch tried this case on the theory that Coca-Cola’s
refusal to permit him to return to work on a part-time basis on
October 6, 1993, was a failure to provide a reasonable
accommodation, which he did not, we have substantial doubt that
Coca-Cola’s decision to retain him on suspension with full pay was
not a reasonable accommodation. Other courts have found that
unpaid leave granted to an employee undergoing treatment can be a
reasonable accommodation, see Myers v. Hose, 50 F.3d 278, 283 (4th
Cir. 1995) (“Requiring paid leave in excess of an employee’s
scheduled amount would unjustifiably upset the employer’s settled
budgetary expectations, and thus cannot be considered a reasonable
accommodation.”), and that in some circumstances an employer may
have no obligation to provide even unpaid leave, see Hudson v. MCI
25
record evidence that Coca-Cola terminated Burch because he could
not return to work earlier than October 27, 1993, when he requested
to return to work on a full-time basis. And, no evidence was
introduced to support any damage award on a claim of failure to
allow return to part-time work while still in treatment.
This Court will not consider on appeal a claim not submitted
to the district court. “A party has presented an issue in the
trial court if that party has raised it in either the pleadings or
the pretrial order, or if the parties have tried the issue by
consent.” Portis v. First Nat’l Bank of New Albany, 34 F.3d 325,
331 (5th Cir. 1994). Burch’s First Amended Complaint, upon which
his case was tried, complains only of his ADA wrongful termination
claim (in addition to his Texas law defamation and intentional
infliction of emotion distress claims). The record before us
contains no pretrial order. The jury was not charged concerning
Coca-Cola’s pretermination refusal to permit Burch to return to
Communications, 87 F.3d 1167, 1169 (10th Cir. 1996) (holding that
unpaid leave of indefinite duration is not a reasonable
accommodation). Certainly, Coca-Cola was not forced to create a
part-time position if the essential functions of the area service
manager’s position demanded a full-time manager. Turco v. Hoechst
Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996); Daugherty v.
City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (citing Chiari v.
City of League City, 920 F.2d 311, 318 (5th Cir. 1991)), cert.
denied, 116 S.Ct. 1263 (1996).
Burch’s citation of Rizzo v. Children’s Learning Ctrs., Inc.,
84 F.3d 758, 765 (5th Cir. 1996), does not support his position.
Rizzo, a summary judgment case in which this Court held that an
employer’s decision to lower a concededly disabled employee’s
hours, to require her to work a “split shift,” and to change her
position from bus driver to cook produced a fact issue as to
whether there had been an adverse employment action, left
unresolved whether the changes were an adverse employment action or
were merely efforts to accommodate the employee’s disability.
26
work on a part-time basis, and there was no request for such a
change nor objection to its omission. There is nothing in the
trial record to suggest——nor does Burch contend——that this separate
claim was tried by consent as contemplated by Rule 15(b). See
Moody v. FMC Corp., 995 F.2d 63, 65-66 (5th Cir. 1993). In sum,
Burch abandoned any such claim by not properly raising it in the
district court.
Burch’s second argument is that Coca-Cola “refused his request
that he be allowed to come back to work full-time.” As stated,
this claim was not properly analyzed as a failure to accommodate.
Burch did not request an accommodation, he requested to return to
his position as he left it when he entered treatment on September
26, 1993. He sought no changes to his position and desired nothing
more than the ability to resume his career where he had left it.
It is undisputed that throughout his absence he had remained on
full salary as a Coca-Cola employee.12 Coca-Cola’s employee benefit
plan paid for his treatment. Burch argues that the jury was free
to reject Coca-Cola’s explanation that Burch was terminated for his
improper behavior at the managers meeting, but whether Coca-Cola
would have fired a nonalcoholic for the same behavior is relevant
only to an intentional discrimination claim. Here, Burch requested
only Coca-Cola’s grace——a request that Coca-Cola refrain from an
employment action that, absent conflict with the ADA’s intentional
12
Burch does not complain that Coca-Cola ever denied a
prospective request for a leave of absence. We therefore have no
need to address whether an employer would be required, in certain
circumstances, to offer a leave of absence to an employee whose
alcoholism qualified as a disability under the ADA.
27
discrimination provision, Coca-Cola was left free to undertake.13
The determination of whether Coca-Cola was required to refrain from
terminating Burch because its true reasons for dismissal were
discriminatory is at the heart of the subjective inquiry required
to establish intentional discrimination under the ADA. Burch
cannot characterize his intentional discrimination claim as a
“request for accommodation” in order to take advantage of the
objective inquiry under section 12112(b)(5). A qualified
individual with a disability who asks only to return to work——but
who is instead fired by his employer——is entitled (on a proper
evidentiary showing) to have the jury consider whether the employer
acted with discriminatory intent, not whether permitting the
employee to return to his old (unmodified) job would have been
reasonable. As Burch had advanced no cognizable request for
accommodation at the time of his termination, Coca-Cola’s decision
to terminate him was not actionable under section 12112(b)(5).14
13
Burch was an at-will employee. Apart from the ADA’s
proscription of discrimination, Coca-Cola was free under Texas law
to terminate Burch “for a good reason, a bad reason, or no reason
at all.” Figueroa v. West, 902 S.W.2d 701, 704 (Tex. App.--El Paso
1995, no writ); see also Schroeder v. Texas Iron Works, Inc., 813
S.W.2d 483, 489 (Tex. 1991); Jones v. Legal Copy, Inc., 846 S.W.2d
922, 925 (Tex. App.--Houston 1993, no writ).
14
Coca-Cola cites a number of cases for the proposition that
employers are under no obligation to accommodate misconduct that is
the product of an employee’s alcoholism. These cases are a correct
interpretation of section 12114(c)(4), which permits employers to
hold alcoholic employees to the same standard of conduct as
nonalcoholic employees. Section 12114(c)(4), unlike the pre-1992
Rehabilitation Act, does not require employers to excuse violations
of uniformly-applied standards of conduct by offering an alcoholic
employee a “firm choice” between treatment and discipline. Compare
Fuller v. Frank, 916 F.2d 558, 562 (9th Cir. 1990) (discussing
firm-choice rule); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.
28
We therefore hold that the magistrate judge should have granted
Coca-Cola’s motion for judgment as a matter of law on Burch’s
1989) (same), with Johnson v. Babbitt, EEOC No. 03940100, 1996 WL
159072 (EEOC Mar. 28, 1996) (finding 1992 amendment to
Rehabilitation Act, 29 U.S.C. § 791(g), which incorporated section
12114(c)(4), eliminated the requirement that an employer provide a
“firm choice” as an accommodation). But cf. Office of the Senate
Sergeant at Arms v. Office of Senate Fair Employment Practice, 95
F.3d 1102 (Fed. Cir. 1996) (finding that amended Rehabilitation Act
obliged employer to provide leave for treatment to a disabled
alcoholic as a reasonable accommodation, but did not require a
“retroactive accommodation” by excusing misconduct).
In the cases cited by Coca-Cola, the employer’s reason for
termination was either uncontested or unrefuted by the employee.
See, e.g., Siefkin v. Village of Arlington Hgts., 65 F.3d 664 (7th
Cir. 1995) (granting summary judgment in ADA case in which the
plaintiff-employee conceded termination for failing to monitor and
control his diabetes, causing an auto accident); Maddox v.
University of Tenn., 62 F.3d 843, 848 (6th Cir. 1995) (granting
employer’s summary judgment motion where alcoholic football coach
failed to rebut employer’s evidence that it terminated him for
misconduct); Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993)
(affirming dimsissal of alcoholic FBI agent’s ADA claim where “it
plainly appears that the appellant was fired because of his
misconduct [being drunk on duty], not because of his alcoholism”);
Rodgers v. County of Yolo Sheriff’s Dep’t, 889 F.Supp. 1284, 1291
(E.D. Ca. 1995) (granting employer’s summary judgment motion in
Rehabilitation Act case involving an alcoholic police officer where
evidence was “unrefuted and demonstrates that plaintiff[’s]
termination was based on poor performance”); see also Collings v.
Longview Fibre Co., 63 F.3d 828, 831-32 (9th Cir. 1995) (affirming
grant of summary judgment for employer of drug abusing employees
where employees failed to rebut employer’s contention that they
were terminated for drug-related misconduct; specifically, no
showing that other employees had been treated differently for
engaging in similar conduct and no showing that employer knew
employees were former drug abusers), cert. denied, 116 S.Ct. 711
(1996). Here, had Burch requested a cognizable (and reasonable)
accommodation, and had he been a qualified individual with a
disability, the jury arguably would have been free to reject Coca-
Cola’s proffered nondiscriminatory reason for termination. Burch
did not so request and was not so qualified. Coca-Cola is correct,
however, that a “second chance” or a plea for grace is not an
accommodation as contemplated by the ADA. See Siefkin, 65 F.3d at
666 (“Siefkin is not asking for an accommodation; he is not asking
the Village to change anything. He is asking for another chance .
. . . But the ADA does not require this.”).
29
reasonable accommodation claim.15
II. Intentional Discrimination
Under Title I of the ADA, an employer cannot discriminate
against a “qualified individual with a disability because of the
disability of such individual in regard to . . . the hiring,
advancement, or discharge of employees.” 42 U.S.C. § 12112(a). In
order to establish a prima facie case of intentional discrimination
under the ADA, this Circuit has required a plaintiff to present
either direct evidence of discrimination or show “‘(1) he or she
suffers from a disability; (2) he or she is qualified for the job;
(3) he or she was subject to an adverse employment action; and (4)
he or she was replaced by a non-disabled person or was treated less
favorably than non-disabled employees.’” Daigle v. Liberty Life
Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995); (citing McDonnell
Douglas Corp. v. Green, 93 S.Ct. 1817, 1824 (1973)).
At the close of Burch’s case, Coca-Cola moved for judgment as
a matter of law on Burch’s intentional discrimination claim
pursuant to Rule 50. Coca-Cola based its motion on the grounds
15
Coca-Cola, quoting Wells v. Dallas Indep. Sch. Dist., 793
F.2d 679, 684 (5th Cir. 1986), further argues for a new trial
because the size of the jury verdict——over $7 million prior to
remittitur——was “‘so exaggerated as to indicate bias, passion,
prejudice, corruption, or other improper motive.’” Although our
decision obviates the need to reach this issue, we note that even
had Burch’s case not suffered from the evidentiary deficiencies we
find dispositive, a jury’s verdict so grossly excessive as this
would most probably warrant a new trial under the standard set
forth in Wells. Burch’s argument that because his counsel
requested $56 million from the jury——an amount argued to represent
one day of Coca-Cola’s net profits per day the jury heard the
trial——the lower figure awarded “shows that [the jury] was not
unduly prejudiced in Burch’s favor” is not persuasive.
30
that Burch had not established that his alcoholism was a
disability, that Burch had demonstrated neither that he had been
replaced by a nonalcoholic employee nor that nonalcoholic employees
had been treated more favorably, and that Burch had not shown any
direct evidence of discriminatory motive on the part of Coca-Cola.
The magistrate judge granted Coca-Cola’s motion without stating
specific grounds.
Burch argues that the magistrate judge’s ruling was premised
on an erroneous understanding of the prima facie elements of an
intentional discrimination claim under the ADA. Specifically,
Burch contends that the magistrate judge granted Coca-Cola’s motion
because Burch had failed to present evidence that he had been
replaced by a someone who was not disabled (without permitting him
to demonstrate disparate treatment). Such a position, Burch
argues, is contrary to our established caselaw setting forth the
prima facie case for intentional discrimination under the ADA.
Amicus Curiae EEOC, which also understands the magistrate judge to
have precluded Burch from advancing disparate treatment proof,
urges reversal of that ruling.16
Coca-Cola argues that the magistrate judge’s ruling is
supportable on each of its three asserted grounds and that any
confusion as to the ruling is explainable by the responses given by
Burch’s counsel in argument on the motion.17
16
The EEOC took no position on any other issue in this appeal.
17
There is some merit to Coca-Cola’s contention. Burch’s
counsel argued before the trial court not that Burch had to
demonstrate either that he had been replaced by a nondisabled
31
Because Burch failed to establish that he suffered from a
disability as that term is defined in the ADA, and because such a
failure is fatal to his ADA intentional discrimination claim, we
affirm the magistrate judge’s grant of Coca-Cola’s Rule 50 motion
on that basis. Accordingly, we do not address whether Burch’s
disparate treatment evidence would have been sufficient to
establish the fourth element of his prima facie case.
The ADA defines “disability” alternatively. A plaintiff who
sues on an intentional discrimination theory can rely on any of the
three alternatives. The ADA provides:
“The term ‘disability’ means, with respect to an
individual--
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2).
A. Substantially Limiting Impairment
For the reasons set forth above, see supra part I.A., we hold
that Burch failed to establish that his alcoholism ever
substantially limited a major life activity, including the major
life activity of working.
B. Record of an Impairment
The ADA does not define “record of such an impairment,” but
employee or was treated less favorably than nondisabled employees,
but rather that he was required to demonstrate neither. Burch’s
counsel argued that, under the rule set forth in Doe v. Kohn Nast
& Graf, P.C., 862 F.Supp. 1310, 1318 & n.5 (E.D. Pa. 1994), the
fourth prong of the McDonnell Douglas standard was inapplicable in
a wrongful termination claim. Of course we have never so held and
Burch does not advance this argument on appeal. See Daigle, 70
F.3d at 396.
32
the regulations and the interpretive guidance promulgated by the
EEOC make clear that Burch, at some point in the past, must have
met or been classified as meeting the standard set forth in section
12102(2)(A). The regulations provide:
“(k) Has a record of such impairment means has a history
of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more
of the major life activities.” 29 C.F.R. § 1630.2(k)
(1996) (second emphasis added).
The interpretive guidance also stresses that “[t]he impairment
indicated in the record must be an impairment that substantially
limits one or more of the individual’s major life activities.” 29
C.F.R. § 1630, App. (1996).
Burch’s argument that he had a record of an impairment when
Coca-Cola fired him rests entirely on the assumption that his
alcoholism substantially limited a major life activity prior to his
treatment at Charter. We have already rejected this contention.
At most, Burch had a record of treatment for alcohol abuse and/or
alcoholism. That Burch’s alcoholism was severe enough to warrant
treatment does not establish a record of a disability. As we have
determined that Burch offered insufficient evidence establishing
that even his untreated alcoholism substantially limited any major
life activity, we fail to see how treatment for a nondisability
alters his status in any significant way. Accordingly, we hold
that Burch was not an individual with a record of an impairment
that substantially limited any major life activity under section
12102(2)(B).
C. Regarded as Having an Impairment
33
“One is regarded as having a substantially limiting impairment
if the individual (1) has an impairment which is not substantially
limiting but which the employer perceives as constituting a
substantially limiting impairment; (2) has an impairment which is
substantially limiting only because of the attitudes of others
toward such an impairment; or (3) has no impairment at all but is
regarded by the employer as having a substantially limiting
impairment.” Bridges v. City of Bossier, 92 F.3d 329, 332 (5th
Cir. 1996) (citing Dutcher, 53 F.3d at 727-28 n.19), cert. denied,
117 S.Ct. 770 (1997).
Whether Burch qualifies under the “regarded as” prong turns on
whether the evidence supports such a finding under the first or
third definition.18 Both definitions require Coca-Cola to have
perceived Burch’s alcoholism as substantially limiting when, in
fact, it was not. Burch does not argue that Coca-Cola regarded
his alcoholism as disabling and such a finding is not supported by
the record. Coca-Cola unquestionably considered Burch to be an
alcohol abuser and concedes that alcohol consumption may have
induced the conduct for which it claimed Burch was fired. Burch’s
testimony, and that of Dr. Nace, would also support a jury finding
that Coca-Cola regarded Burch as suffering from alcoholism, as that
condition was defined at trial. But, as in our discussion of
18
The record evidence does not show that negative reactions by
others toward known alcoholics substantially limited Burch in any
manner. Dr. Nace testified only that a “skidrow image” of
alcoholics has persisted. There was no evidence suggesting that
Coca-Cola employees embraced this view and we will not presume that
its prevalence is so pervasive.
34
actual disabilities, we do find the evidence insufficient to
support a finding that Coca-Cola regarded Burch as anything other
than what he actually was: an alcoholic whose alcoholism did not
substantially impair any major life activity, including the major
life activity of working.
We find guidance in our recent decision in City of Bossier.
In City of Bossier, we held that, in order for an employer to have
regarded an impairment as substantially limiting in the activity of
working, the employer must regard an individual as significantly
restricted in the ability to perform a class or a broad range of
jobs. 92 F.3d at 332. Burch produced no evidence that Coca-Cola
regarded him to be so limited.
Coca-Cola may have been concerned about Burch’s acknowledged
“inappropriate” behavior, about his short temper, and about a
specific instance of off-hour conduct, but Burch offered no
evidence that demonstrates Coca-Cola regarded his alcoholism as
substantially limiting his ability to work or his other major life
activities. The record demonstrates that Coca-Cola was aware of
the favorable letters submitted by Drs. Nace and Matamoros at the
time of the termination decision. There was no evidence suggesting
that Coca-Cola either discredited Burch’s physicians’ view that
Burch’s alcoholism would not affect his prospective ability to
refrain from inappropriate conduct or that its managers premised
their decision on such a position. But, significantly, even if
Coca-Cola had considered Burch’s alcoholism as an impediment to his
position with the company, that would not end our inquiry. Coca-
35
Cola must have understood Burch’s alcoholism to preclude employment
in an entire class of jobs. Assuming Coca-Cola regarded his
alcoholism as precluding employment as an area service manager with
direct reporting authority over approximately twenty employees and
a wide geographic area, such a conclusion falls far short of the
standard set forth in City of Bossier. Id. at 334 (finding that an
impairment that precluded employment in any position “involving
routine exposure to extreme trauma” precluded only a “narrow range
of jobs”); see also Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th
Cir. 1995) (“restrictions against working with meat products in a
cold environment . . . only appeared to prevent [plaintiff] from
performing a narrow range of meatpacking jobs”). The record is
silent as to any conception, or misconception, held by Coca-Cola
that alcoholism, alone, renders an alcoholic employee substantially
impaired. Indeed, the fact that Coca-Cola had in place an employee
assistance program designed to assist employees who may be
experiencing problems with alcohol through referrals and
counseling weighs in favor of the opposite conclusion.
As there was insufficient evidence to establish that Coca-Cola
regarded Burch as disabled, and because Burch did not otherwise
establish that he met the statutory definition of disabled, we hold
that Burch failed to meet the prima facie elements of intentional
discrimination under the ADA. Coca-Cola’s motion for judgment as
a matter of law was properly granted on Burch’s intentional
discrimination claim.
III. Defamation
36
Burch appeals the magistrate judge’s grant of summary judgment
in favor of Coca-Cola on his Texas law defamation claim. Burch
argues that two statements by Coca-Cola were defamatory. The first
was a statement by Charles Rose, an employee in Coca-Cola’s human
resources department, to Drake, Beam & Morin to the effect that
Burch had been terminated for violent and threatening behavior.
The second, from Cutshall to Smith, communicated a somewhat similar
message. The magistrate judge granted summary judgment on the
ground that these statements were opinion and, as such, were not
actionable under Texas law. Memorandum Order at 1 (N.D. Tex. Jun.
7, 1995) (citing Schauer v. Memorial Care Sys., 856 S.W.2d 437, 446
(Tex. App.--Houston 1993, no writ)).
Coca-Cola argues that summary judgment was appropriate because
both statements were opinion and, alternatively, that Rose’s
statement to Drake, Beam & Morin was protected by the common
interest privilege. Burch argues that any privilege that Coca-Cola
might have had concerning the statements made to Drake was waived
by Cutshall’s statement to Smith, who was no longer affiliated with
Coca-Cola at the time the statement was made.
Finding the statement from Rose to Drake, Beam & Morin
protected by the common interest privilege, and finding that the
statement from Cutshall to Smith does not support a defamatory
meaning, we find no error in the magistrate judge’s grant of
summary judgment in favor of Coca-Cola.
“Slander is a defamatory statement orally communicated or
published to a third person without legal excuse.” Halbert v. City
37
of Sherman, 33 F.3d 526, 530 (5th Cir. 1994); Randall’s Food Mkts,
Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). “Accusations or
comments about an employee by his employer, made to a person having
an interest or duty in the matter to which the communication
relates, have a qualified privilege.” ContiCommidity Servs., Inc.
v. Ragan, 63 F.3d 438, 442 (5th Cir. 1995) (citing Schauer, 856
S.W.2d at 449), cert. denied, 116 S.Ct. 1318 (1996). This
privilege extends to statements made in good faith by a former
employer to a prospective employer, see Pioneer Concrete of Texas,
Inc. v. Allen, 858 S.W.2d 47, 49 (Tex. App.--Houston 1993, writ
denied), and those made to agencies engaged in placement services,
id. at 50. The privilege can be defeated by showing actual malice
or an abuse of the privilege. ContiCommodity, 63 F.3d at 442;
Randall’s, 891 S.W.2d at 646.
Burch argues that, although Pioneer held that statements made
to placement agencies are covered by the conditional privilege,
Rose’s statement was not privileged because Drake, Beam & Morin was
not a placement firm but rather a firm specializing in employment
counseling. We find the distinction insufficient to defeat the
privilege.
The privilege described in Pioneer was nothing more than a
practical application of Texas’s common-interest privilege, which
recognizes that public or private interests in the availability of
correct information can be of sufficient importance to require
protection of the honest communication of misinformation. Pioneer,
858 S.W.2d at 50 (citing Kaplan v. Goodfried, 497 S.W.2d 101, 105
38
(Tex. App.--Dallas 1973, no writ)). Accordingly, voluntary
communications, in addition to communications in response to a
request, are privileged “‘if the relationship between the parties
is such that it is within generally accepted standards of decent
conduct to furnish the information for the protection of the
recipient.’” Id. (quoting Kaplan, 497 S.W.2d at 105-06).
The communication between Rose, a Coca-Cola human resources
employee, and the offices of Drake, Beam & Morin were privileged
under Texas’s common-interest privilege. First, there was
uncontroverted testimony that the standard practice for Drake Beam
in particular, and among employment counseling firms in general,
was to utilize the reasons for an employee’s termination to aid in
that employee’s employment counseling preparation. Second, there
was no evidence suggesting that Rose acted with any purpose other
than to assist Burch’s search for subsequent employment.19
19
Rose testified:
“Q. Was it your practice to tell the out-placement
service the reason for an employee’s termination?
A. Yes.
Q. Why is that?
A. There is actually a number of reasons, but the main
reason is that it helps the out-placement service do a
better job counseling the employee to find their [sic]
next job.
. . . .
Q. Tell me how it would help Mr. Burch for Drake Beam
& Morin to know that Coca-Cola had terminated him for
violent and threatening behavior?
A. A couple of different ways. Drake Beam has a number
of different kinds of counselors available to them. It
would help them select the person——the person best
qualified and best suited to help him from their staff.
And secondly, they need to coach their clients on how to
39
Accordingly, we hold that the statements made by Rose to Drake Beam
were privileged and that Burch failed to establish that Rose,
acting on behalf of Coca-Cola, acted with actual malice so as to
defeat the privileged nature of the statements.20
answer questions when they get into an interview
situation.
. . . .
Q. Have you ever given that type of information about
why an employee was discharged to Drake Beam in the past?
A. Yes.
Q. And relating to other employees?
A. Yes.
Q. Have you provided similar information to other out-
placement counseling firms other than Drake Beam in other
cases?
A. Yes.
Q. In your experience, is that the type of information
that Drake Beam wanted to have?
A. Yes.
. . . .
Q. And why is that?
A. When I am on the phone with Drake Beam, they ask me
why a person has been terminated.”
Rose’s affidavit stated:
“The information I provided to Drake Beam was of the type
customarily provided to an outplacement firm, and was
necessary to enable Drake Beam to effectively provide its
services to plaintiff. In accordance with our
established business relationship, this information was
considered by Coca-Cola and Drake Beam to be strictly
confidential.”
20
“‘Actual malice is not ill will; it is the making of a
statement with knowledge that it is false, or with reckless
disregard of whether it is true.’” Duffy v. Leading Edge Prods.,
Inc., 44 F.3d 308, 313 (5th Cir. 1995) (quoting Carr v. Brasher,
776 S.W.2d 567, 571 (Tex. 1989)). The absence of an additional
investigation as to the truth or falsity of a statement has been
held insufficient to establish actual malice. Id. (citing Shearson
Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 924 (Tex. App.--
Corpus Christi 1991, writ dismissed w.o.j.)).
40
Burch also asserts that, even if Rose’s communication was
privileged, Cutshall’s communication of similar information to
Smith waived the privilege. We disagree. The common-interest
privilege is not waived by an unrelated communication of similar
information on a separate occasion to a former employee who may be
asked to provide a recommendation.
The conditional, common-interest privilege “remains intact as
long as communications pass only to persons having an interest or
duty in the matter to which the communications relate.” Randall’s,
891 S.W.2d at 646; Reeves v. Western Co. of N. Am., 867 S.W.2d 385,
394 (Tex. App.--San Antonio 1993, writ denied); Perry Bros. Variety
Stores, Inc. v. Layton, 25 S.W.2d 310 (Tex. Comm’n App. 1930,
judgm’t adopted). Here, however, Burch does not contend that
Rose’s statement to Drake Beam was communicated, or overheard, by
any person not covered by the privilege. Rather, Burch argues that
a separate, second statement made on a different occasion, by a
different person, and to a different person, communicated at a
different time not established by the record, worked a waiver of
the privilege that had attached to the statement to Drake Beam.
Waiver occurs where the allegedly defamatory statement was made to
those outside the interest group. This was not established. See
Mitre v. Brooks Fashion Stores, Inc., 840 S.W.2d 612, 619 (Tex.
App.--1992, writ denied) (reversing summary judgment because
whether a flyer accusing plaintiffs of passing counterfeit bills
“was published only to shop employees, or also to the general
public” was a fact issue relating to the privilege); Layton, 25
41
S.W.2d at 313 (“[T]he defamatory statements of Barr lost their
privileged character by reason of the fact that same were made in
a store open to the general public, and in the presence and hearing
of customers who were there . . . and who had no interest in the
subject matter of the statements.”); see also Danawala v. Houston
Lighting & Power Co., 14 F.3d 251, 255 (5th Cir. 1993) (finding
“secondary publications” by unauthorized gossip by co-workers did
not waive the privilege).
Burch also contends that some time after he was terminated
Cutshall defamed him in a telephone conversation with Smith, who
was then employed by another company. The only evidence concerning
this conversation is Cutshall’s deposition testimony. Cutshall
there stated he called Smith in order to obtain a favorable
reference for Burch, believed that Smith asked him why Burch had
been terminated, and that he told Smith “what had been relayed to
me as to what had happened,” that he did not recall saying Burch
had engaged in “violent” behavior, but had “used the word
threatening behavior, menacing behavior toward another employee.”
Nothing more is shown concerning what Cutshall said to Smith.
Given the context of Cutshall’s conversation, and the undisputed
evidence that Burch, a physically imposing 6'5", 223 pounds, at the
least had become visibly and obviously very angry at the meeting
and mouthed hostile vulgarities to and pointed at a fellow employee
there, gesturing with his head for the two of them to go outside,
we conclude that this mere snippet of testimony from Cutshall’s
deposition does not suffice to establish that Cutshall falsely
42
defamed Burch.
Coca-Cola argues that “[i]t is well-settled Texas law that
mere statements of opinion are protected as free speech and cannot
form the basis of a cause of action for defamation.” Burch argues
that Coca-Cola’s reading of Texas law relies on an abandoned
adherence to Gertz v. Robert Welch, Inc., 94 S.Ct. 2997 (1974), and
that Texas now follows the view, expressed in Milkovich v. Lorain
Journal Co., 110 S.Ct. 2695 (1990), that statements of opinion may
be actionable if they imply an assertion of objective fact. We
find no inconsistency between the cases cited by Coca-Cola and
those cited by Burch. Texas case law plainly protects those
communications that are not objectifiably verifiable. See Carr v.
Brasher, 776 S.W.2d 567; Simmons v. Ware, 920 S.W.2d 438 (Tex.
App.--Amarillo 1996); Schuller v. Swan, 911 S.W.2d 396 (Tex. App.--
Corpus Christi 1995); Schauer, 856 S.W.2d 437; Shearson Lehman
Hutton, 806 S.W.2d 914; Yiamouyiannis v. Thompson, 764 S.W.2d 338
(Tex. App.--1988, writ denied), cert. denied, 110 S.Ct. 722 (1990).
“‘A statement is defamatory if the words tend to injure a
person’s reputation, exposing the person to public hatred,
contempt, ridicule, or financial injury.’” McKethan v. Texas Farm
Bureau, 996 F.2d 734, 743 (5th Cir. 1993) (quoting Einhorn v.
LaChance, 823 S.W.2d 405, 410-11 (Tex. App.--Houston 1992, writ
dismissed w.o.j.) (holding statement that an employee was fired for
reasons relating “solely to work performance” was not defamatory
because it was nonspecific)), cert. denied, 114 S.Ct. 694 (1994).
“‘Whether the words are reasonably capable of the defamatory
43
meaning the plaintiff attributed to them is a question of law for
the trial court.’” Id. (quoting Kelly v. Diocese of Corpus Christi,
832 S.W.2d 88, 91 (Tex. App.--Corpus Christi 1992, writ refused)).
The allegedly defamatory statement must be considered in context
and in light of the circumstances surrounding its publication. Id.
We hold that, given the uncontroverted purpose of the
communication from Cutshall to Smith——to obtain a favorable
recommendation for Burch——and the vague and general nature of the
statement made, as well as Burch’s admitted conduct at the meeting,
Cutshall’s statement was not falsely defamatory.
Cutshall testified that his remarks were made for the purpose
of obtaining a favorable recommendation. There was no evidence
that Cutshall provided any factual information to Smith other than
characterizing the nature of Burch’s termination. Cutshall
testified that he told Smith “what had been relayed to me as to
what had happened.” Burch testified that Smith had reviewed his
prior performance favorably in evaluations and was aware of Burch’s
professional ability. Given Cutshall’s communicated purpose——to
obtain a favorable recommendation——and in light of the
circumstances surrounding the statement, we find that no reasonable
jury could find that Cutshall’s remarks rose to the level of
actionable defamation under Texas law.
Conclusion
For the foregoing reasons, we affirm the magistrate judge’s
grant of judgment as a matter of law on Burch’s ADA intentional
discrimination claim, affirm the grant of summary judgment on
44
Burch’s defamation claim, and reverse the denial of Coca-Cola’s
motion for judgment as a matter of law on Burch’s ADA reasonable
accommodation claim. Accordingly, the judgment of the trial court
is REVERSED and the cause is REMANDED with instructions to enter
judgment dismissing all of Burch’s claims against Coca-Cola.
AFFIRMED in part; and REVERSED and REMANDED with instructions
45